THE DECEPTIVE USE OF ONE'S OWN NAME. 245 order to maintain his right to relief. The simplest way to show that the acts of the new maker are wrongful is to prove that he is using the word untruthfully ; no honest occasion for adopting it can then exist,^ and the court will interfere, not because of the fraud upon the public, but to prevent the unnecessary, and there- fore wrongful, imitation of the plaintifif. Many other instances at once suggest themselves in which unfair competition by means of deceptive devices which are not infringements of any trademark will be enjoined. For example, imitations of the capsule of a champagne bottle, or of the shape of a box, have been prevented,^ and so have certain deceptive uses of geographical names, and other descriptive words, which were not, strictly speaking, untruthful.^ The fraudulent use of his own name is a special example of the unfair use of a word which a new maker has a right to employ fairly. No difficult question arises except when he is using his own true name either alone or as part of the name of a firm of which he is really a member. If he has assumed the name, even by leave of court, the use of it in any way whatever in competition with an old maker will be enjoined ; * a corporation, which can choose its own name, will not be allowed to use one similar to that of any existing concern in the same line of business,^ and of course the purchase of a name, either by means of a fictitious partnership or in any other way, will not confer any right to use it if it too closely resembles that of an earlier dealer.^ Deception and injury caused in any of these ways are needless and unjustifi- able, and will therefore be prohibited as a matter of course. But' a man himself has a certain right to use the name with which he is born in any business which he actually carries on, even if he incidentally deceives the public and injures an earlier dealer; and 1 See, for example, Newman v. Alcord, 51 N. Y. 189, in which it is held that a manufacturer of cement at Akron, who called his product " Akron Cement," could enjoin a manufacturer at Syracuse from imitating the name. Cf. ace. Pillsbury & Washburn Flour Mills v. Eagle, 86 Fed. Rep. 608 ; Birmingham Vinegar Brewery Co. V. Powell, [1897] App. Cas. 710; California Fig-Syrup Co. z/. Worden, 86 Fed. Rep. 212, and cases cited. 2 Von Mumm v. Frash, 56 Fed. Rep. 830 ; Baker v. Baker, 77 Fed. Rep. iSl. ' Atwater v. Castner, 88 Fed. Rep. 642.
- Pinet V. Pinet, [1898] i Ch. 179.
6 Hendriks v. Montagu, 17 Ch. D. 638; Holmes, Booth, & Haydens v. Holmes, Booth, & Atwood Mfg. Co., 37 Conn. 278 ; Charles Higgins Co. v. Higgins Soap Co., 144 N. Y. 462 ; Vm. Rogers Mfg. Co. v. R. W. Rogers Co., 70 Fed. Rep. 1017. 6 Melachrino v. Melachrino & Co., 4 Pat. Rep. Eng. 215; Sawyer v. Kellogg, 7 Fed. Rep. 720.
